B-74386, MAY 26, 1965

B-74386, MAY 26, 1965

TO EMERY AND WOOD:

YOUR LETTER DATED APRIL 12, 1965, REQUESTS FURTHER CONSIDERATION OF THE ACTION TAKEN BY OUR CLAIMS DIVISION ON MARCH 17, 1965, REVERSING SETTLEMENT DATED JULY 10, 1964, ALLOWING COLONEL ROBERT MCDONALD GRAY INCREASED RETIRED PAY COMPUTED ON THE BASIS OF OVER 26 YEARS OF SERVICE FOR BASIC PAY PURPOSES INSTEAD OF OVER 22 YEARS OF SERVICE FOR BASIC PAY PURPOSES, DEMANDING REFUND OF THE AMOUNT OF $410.61 ALLOWED IN THE SETTLEMENT AND CONCURRING IN THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY TO COLLECT THE AMOUNT OF $472.48 OVERPAID DURING THE PERIOD APRIL 1 THROUGH NOVEMBER 30, 1964.

THE FOLLOWING ARE THE FACTS CONCERNING THE OFFICER'S RETIRED STATUS PERTINENT TO THE ISSUE INVOLVED. HE COMPLETED 30 YEARS AND 30 DAYS OF SERVICE COMPUTED UNDER 10 U.S.C. 3927 (A) ON FEBRUARY 18, 1962, AND WAS PLACED ON THE RETIRED LIST MARCH 1, 1962, UNDER THE REQUIREMENTS OF 10 U.S.C. 3921 AND 5 U.S.C. 47A. HE WAS RETAINED ON ACTIVE DUTY UNTIL AUGUST 31, 1963, AT WHICH TIME HE WAS RELIEVED FROM FURTHER ACTIVE DUTY AND REVERTED TO A RETIRED STATUS ON SEPTEMBER 1, 1963.

ON FEBRUARY 18, 1962, DATE OF HIS MANDATORY RETIREMENT, THE OFFICER HAD 24 YEARS, 6 MONTHS OF SERVICE FOR BASIC PAY PURPOSES. WHEN HE REVERTED TO THE RETIRED LIST ON SEPTEMBER 1, 1963, HE HAD SERVED 1 YEAR AND 6 MONTHS OF ACTIVE DUTY SUBSEQUENT TO THE DATE OF HIS RETIREMENT AS FIXED BY 5 U.S.C. 47A OR A TOTAL OF EXACTLY 26 YEARS' SERVICE. THUS IT WAS DETERMINED--- APPARENTLY IN THE BELIEF THAT PARAGRAPH (2), COLUMN 2, 10 U.S.C. 1402 (A) WAS CONTROLLING--- THAT COLONEL GRAY WAS NOT ENTITLED TO INCREASED RETIRED PAY COMPUTED ON THE BASIS OF OVER 26 YEARS FOR BASIC PAY PURPOSES ALLOWED BY SETTLEMENT DATED JULY 10, 1964, AND ALSO PAID BY THE RETIRED PAY DIVISION, DEPARTMENT OF THE ARMY FOR THE PERIOD APRIL 1 THROUGH NOVEMBER 30, 1964.

IT IS YOUR CONTENTION THAT COLONEL GRAY IS ENTITLED TO CREDIT FOR ALL OF HIS SERVICE FROM AUGUST 19, 1937, TO AUGUST 31, 1963, OR OVER 26 YEARS OF SERVICE AND THAT THERE IS NO BASIS IN LAW FOR EXCLUDING A SEGMENT OF HIS CONTINUOUS SERVICE AS A COMMISSIONED OFFICER OF THE ARMY.

WHILE IT IS TRUE THAT IN APPLYING THE RESTRICTIONS CONTAINED IN 5 U.S.C. 47A IN CONJUNCTION WITH THE PROVISIONS OF 10 U.S.C. 3921 AND 3927, COLONEL GRAY WOULD HAVE BEEN ENTITLED UPON THE EFFECTIVE DATE OF HIS RETIREMENT, MARCH 1, 1962, TO CREDIT ONLY 24 YEARS, 6 MONTHS OF SERVICE FOR BASIC PAY PURPOSES IN THE COMPUTATION OF HIS RETIRED PAY UNDER FORMULA A AS PRESCRIBED IN 10 U.S.C. 3991 (SEE 38 COMP. GEN. 5), HE PERFORMED CONTINUOUS ACTIVE DUTY FROM FEBRUARY 18, 1962, UNTIL HE REVERTED TO THE RETIRED LIST ON SEPTEMBER 1, 1963. AT THAT TIME (SEPTEMBER 1, 1963) UNDER THE PROVISIONS OF COLUMN 1, 10 U.S.C. 1402 (A), HE WAS ENTITLED TO RECOMPUTE HIS RETIRED PAY ON THE BASIS OF THE MONTHLY BASIC PAY OF THE GRADE IN WHICH HE WOULD BE ELIGIBLE TO RETIRE IF HE WERE RETIRING UPON THAT RELEASE FROM ACTIVE DUTY. SINCE ON AUGUST 31, 1963, HE WAS RECEIVING MONTHLY BASIC PAY AT THE RATE OF $985 AS COLONEL, 0-6, WITH OVER 26 YEARS OF SERVICE, HE WAS ENTITLED ON SEPTEMBER 1, 1963, TO RECOMPUTE HIS RETIRED PAY ON THE BASIS OF THAT RATE OF PAY MULTIPLIED BY 75 PERCENT--- APPLICABLE PERCENTAGE FACTOR--- OR $738.75. SUBSEQUENT TO OCTOBER 1, 1963, HE WAS ENTITLED TO THE INCREASE OF 5 PERCENT IN HIS RETIRED PAY AUTHORIZED BY SECTION 5 (E) OF THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PUB.L. 88-132, 77 STAT. 213.

ACCORDINGLY, COLONEL GRAY MAY DISREGARD THE DEMAND FOR REPAYMENT CONTAINED IN LETTER DATED MARCH 17, 1965, AND APPROPRIATE ACTION WILL BE TAKEN TO ADJUST HIS RETIRED PAY ACCOUNT IN CONFORMITY WITH THIS LETTER.